The Supreme Court found that Vermont's Prescription Confidentiality Law, which restricts the use of pharmacy records containing prescriber-identifiable information, violates the Free Speech Clause of the First Amendment. The law aims to protect medical privacy and prevent marketing from influencing prescription decisions not in the best interests of patients or the State. However, the Court found that the law cannot meet the heightened judicial scrutiny standard. Pharmaceutical manufacturers use prescriber-identifiable information to refine their marketing tactics and increase sales, particularly for high-profit brand-name drugs. Vermont's law prohibits the use of such information for marketing or promoting a prescription drug without the prescriber's consent. The law has three parts, which prohibit the sale, use, and disclosure of prescriber-identifying information without consent. The Vermont attorney general may pursue civil remedies against violators. Exceptions to the prohibitions include health care research, enforcing compliance with health insurance formularies or preferred drug lists, care management educational communications to patients, law enforcement operations, and purposes otherwise provided by law. The Supreme Court granted certiorari to resolve the conflict with decisions of the United States Court of Appeals for the First Circuit concerning similar legislation enacted by Maine and New Hampshire. The State of Vermont argued that § 4631(d) prohibits regulated entities from selling or disseminating prescriber-identifying information for marketing purposes only. However, at oral argument in the Supreme Court, the State advanced an alternative reading of § 4631(d) that prohibits the sale of prescriber-identifying information for any purpose, subject to the statutory exceptions set out at § 4631(e). The questions now are whether § 4631(d) must be subjected to heightened judicial scrutiny and, if so, whether the State can justify the law.

The dissenting opinion in the Vermont case argues that the state's statute restricting the use of prescriber-identifiable information by pharmaceutical and data-mining companies for marketing purposes is constitutional under the First Amendment. The opinion emphasizes the importance of considering legitimate commercial regulatory objectives and disagrees with the majority's use of a heightened standard for commercial regulation's First Amendment protection. The Supreme Court applies different levels of protection for commercial speech, allowing government laws and regulations to significantly restrict speech as long as they directly advance a substantial government interest that cannot be served as well by a more limited restriction. Vermont's law should be reviewed under the standard appropriate for economic regulation, not under a heightened First Amendment standard. The statute's requirements are part of a traditional and comprehensive regulatory regime that has been in place since 1906, and the pharmaceutical drug industry is heavily regulated. The same First Amendment standards that apply to Vermont would apply to similar regulatory actions taken by other States or by the Federal Government. The Vermont statute pertains to information that is only available due to government regulation, and regulators may need to impose specific limitations on the use of such information. Tailored restrictions on the use of such information are necessary to ensure that it is used only for its intended purpose and to protect the privacy of individuals.